Can Trump Be Barred from Office on Fourteenth Amendment Grounds?

The legal outlook is uncertain. The political outlook is ugly. Other than that...

Former U.S. President Donald Trump speaks to the media at Atlanta Hartsfield-Jackson International Airport after being booked at the Fulton County jail on August 24, 2023 in Atlanta, Georgia. Trump was booked on multiple charges related to an alleged plan to overturn the results of the 2020 presidential election in Georgia. (Photo by Joe Raedle/Getty Images)

[On the August 25, 2023 edition of The Bulwark’s “Beg to Differ” podcast, host Mona Charen asked the panelists about the law review article by William Baude and Michael Stokes Paulsen arguing that state election officials can exclude Donald Trump’s name from the ballot for federal office because he “engaged in insurrection” after having “taken an oath . . . to support the Constitution.”]

Walter Olson: I have a somewhat middle-of-the-road and equivocal view. . . . Before I looked at [the Baude-Paulsen article], I had been among those who had been somewhat dismissive of section 3 of the Fourteenth Amendment for our own circumstances and had thought . . . it’s going to be a blind alley [and] people are going to be disappointed in some cases when it doesn’t work out.

Well, Baude and Paulsen’s article is very well put together, it is argued very carefully. They are very well respected conservative law professors associated with the Federalist Society, and they do a—really, it’s a tour de force—a magnificent job.

It doesn’t mean, necessarily, I think that their view is going to prevail in the courts. A couple of quick points about that.

First, I had always been aware that there had been a ruling, not by the Supreme Court, but by a panel that included Salmon Chase, the chief justice of the United States, basically taking the other side—saying, We’re going to interpret this not to be self-executing, as lawyers put it, but requiring a finding by a court or Congress or someone that someone was an insurrectionist. . . . And [Baude and Paulsen] argue, I think very persuasively, that Chase was probably wrong.

On the other hand, precedent is precedent. And we know that the Supreme Court regularly agrees to live with old cases that it might agree were not really decided. So, that’s point number one.

Point number two . . . is a vision of chaos and anarchy . . . in which every secretary of state, and perhaps down to a more granular level—you know, county election boards—could be refusing to let [Trump] on the ballot [and] could be refusing to tabulate votes as invalid. This could happen, as indeed it did happen in challenges to Representatives Madison Cawthorn and Marjorie Taylor Greene. . . .

Let me say somewhat reassuringly, all those things are going to get appealed very quickly, if they have any success, and go right up to the Supreme Court. It’s crucial for the country. But it will also probably happen, that if this gets any traction, it is going to be resolved . . . early by the Supreme Court, so that we don’t have to go through uncertainty about whether or not it applies to Trump. . . .

Damon Linker: I’ve written on this this week. I have no informed opinion about the legal side of it. . . . But I think as a political question, I think this cannot possibly be the way our Trump problem gets resolved.

It may be the case that in the immediate aftermath of the Civil War with the Confederacy, a defeated insurrectionary movement within the country with hundreds of thousands of deaths, and a surrender in hand, that the victorious Union had the authority to say . . . If you want to vote for these insurrectionists to office, you are not allowed to do it. That’s what happens in a war when one side surrenders to the other.

That is not at all the relationship between the Democratic party and the Republican party in our time, and the sad fact is that if this starts to unfold, it is going to be Democratic states, Democratic secretaries of state, arguing one side, against Republican states and Republican lawyers and members of the Republican party on the other side, and ultimately it will be decided by the U.S. Supreme Court.

And I would bet quite a bit of money that it will probably end up that it will not fly, and it will be either a 6–3 or a 5–4 decision with the conservatives siding the way you would predict them to. And in the end, then, maybe it won’t matter. . . .

The sad, dangerous fact about our political moment is that the Republicans have succeeded in creating their own alternative, legal, moral, and political universe. . . . And so inevitably, it ends up being not an overwhelming bipartisan consensus that ‘these are the rules that Trump has violated [and] therefore he cannot serve in office again as president.’ I think it inevitably will end up seeming like . . . a bunch of Democrats are getting together and saying that [voters in] the Republican portion of the country are not permitted to want the person they want to be president. And I don’t think that’s a viable political path forward. So I do hope that this goes nowhere. And that Trump, if he is indeed the nominee, simply loses by the greatest possible margin in the vote. . . .

Linda Chavez: I don’t disagree with Damon in terms of the politics of this issue, and the way it would be incredibly divisive. I do think that’s right. I think Republicans would scream bloody murder if Democratic secretaries of state attempted to remove Donald Trump. And that, of course, is what it’s going to take. It’s going to take a state official refusing to put Donald Trump’s name on the ballot.

But let’s not think about this as some kind of punishment for Trump’s behavior. There are qualifications to be president of the United States. When Arnold Schwarzenegger was governor of California, and everybody loved him, people were saying, Oh, gee, it’s really too bad he wasn’t born in the United States so that he could run for president. Nobody suggested that that was somehow a punishment. It was a qualification. Similarly, the age qualification is one of the qualifications.

And what they did in the Fourteenth Amendment . . . this was not so much a punishment to those who had been involved in the Civil War. After all, it wasn’t [applied to] everyone. It was only those who had taken a previous oath to the Constitution, and then had flouted that oath. And more than just flouted it, they had actually “engaged in insurrection” or “given aid and comfort” to insurrectionists.

And I also am not that sure that you’d see the kind of result at the Supreme Court—if, in fact, this is tested in the courts—as Damon predicts. . . .

Olson: Assuming it goes to the U.S. Supreme Court, what’s likely to happen? . . . The phrase that I always think of is [the late Supreme Court Associate Justice Antonin] Scalia’s. . . . He said that he was an originalist, but that he was “a faint-hearted originalist.” It meant that even though some old decisions were incorrectly decided, you can’t just pull down the pillars of the temple every time you see an old intellectual mistake. . . .

Now, the Court is not all that divided. Neil Gorsuch is the justice above all who doesn’t believe in being faint-hearted: If he reads an old Indian treaty giving a third of Oklahoma to the Indians, you know, by golly, he’s going give it to them. But to some extent, all the other eight are faint-hearted. And for the reasons Damon said about the political tumult . . . I would actually be kind of surprised if the disqualification side got as many as three votes on the Supreme Court.